An attorney for Brock Turner, the former Stanford University swimmer convicted of sexually assaulting an unconscious woman in 2016, launched a bid to overturn his client’s convictions before a panel of skeptical appellate judges Tuesday, arguing that Turner never intended to have sexual intercourse with the woman. He just wanted “outercourse,” attorney Eric S. Multhaup told the court in a brief and in oral arguments.

The distinction is central to Multhaup’s argument that Turner should not have been convicted of assault with intent to commit rape because, he claims, Turner’s clothes were on when two bicyclists saw him thrusting on top of the half-naked, unconscious woman. He argued that Turner was engaged only in “outercourse,” a “version of safe sex” with no “penile contact,” Multhaup explained, the Palo Alto Weekly reported.

The long-shot legal argument had three California 6th District Court of Appeal justices scratching their heads, according to multiple accounts of the hearing.

Turner was convicted of two counts of digital penetration of an intoxicated and unconscious person and one count of assault with intent to commit rape in 2016, crimes for which he served three months of his six-month jail sentence and three years of probation. He also was required to register as a lifetime sex offender. The sentence, which many described as too lenient, outraged sexual assault survivors and domestic violence groups across the country, resulting in a bid to unseat the judge who sentenced Turner, Aaron Persky. In June, that campaign was successful: Santa Clara County voters recalled him from the bench with 60 percent of the vote.

Turner’s attempt to overturn his convictions began in December, when Multhaup filed a 172-page brief with the California appeals court. He filed a second brief in May, arguing that Turner was convicted on constitutionally insufficient evidence and deprived of due process and a fair trial. Specifically, he argued that Turner shouldn’t have been convicted of digital penetration of an unconscious and intoxicated person because the prosecution didn’t prove he “knew or should have known [the victim] was so intoxicated as to be unable to resist digital penetration,” as California statute requires. “There was no proof beyond a reasonable doubt that she had lapsed into unconsciousness at the time of the digital penetration,” Multhaup wrote.

And Turner shouldn’t be convicted of intent to commit rape because it was “outercourse,” Multhaup argued.

In his brief, he describes outercourse this way:

The ‘aggressive thrusting’ or ‘humping’ while fully clothed is viewed in modern times as an alternative to or substitute for sexual intercourse, not a precursor to it. The term for this type of activity in the popular lexicon is ‘outercourse,’ and Anne Bolin and Patricia Whelehan . . . have described it as follows: “ ’Outercourse,’ interfemoral intercourse or what in your author’s generation was known as ‘dry-docking’ or ‘dry humping,’ is a relatively safer sensual-sexual alternative” to sexual intercourse, they write in their 1999 book, “Perspectives on Human Sexuality.”

In the police report, Turner’s conduct is described this way: Two young men on bicycles encountered Turner behind a dumpster thrusting on top of a woman whose dress was pulled up over her waist, whose underwear was thrown to the side, and whose tangled hair and back were covered in pine needles, as sheriff’s deputies would soon discover. The two men noticed she was not moving at all. They decided to interrupt Turner, who fled but was soon pinned to the ground by the men. They said they did not know whether Turner’s pants were undone before the chase. Police soon arrived and found the woman lying unconscious. Turner admitted to digitally penetrating her, police said.

At the time Turner was convicted, California law differed from other states in that rape was specifically confined to sexual intercourse by force, excluding digital or oral penetration. That’s the core reason Multhaup argues that Turner isn’t guilty of “intent to commit rape.” That loophole is what inspired legislation revising the rape statute in 2016 to include any type of nonconsensual sexual assault.

But it won’t affect Turner’s case because the law was passed after his attack.

At Tuesday’s oral argument, the three justices reminded Multhaup that the purpose of an appellate court is not to question the jury’s verdict retrospectively.

“We are not in a position to say [of the jury], ‘You should have gone a different way,’ ” Elia said, the Mercury News reported. Elia added: “Intent is rarely proved by direct evidence” but rather circumstantial evidence. “You can’t surgically remove things and look at them separately.”

The justices have 90 days to issue a ruling.

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Meagan FlynnMeagan Flynn is a reporter on The Washington Post's Morning Mix team. She was previously a reporter at the Houston Chronicle and the Houston Press. Follow

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